1927 May 16

First Amendment Breakthrough: Supreme Court Invalidates Use of Kansas Criminal Syndicalism Law


In the case of Fiske v. Kansas, decided on this day, the Supreme Court declared the Kansas Criminal Syndicalism law an unconstitutional violation of the due process clause of the Fourteenth Amendment. The opinion, however, did not refer to the First Amendment, and so it did not have direct application to other free speech cases in those years. (In the 1920s, 30 states had some variation of a criminal syndicalism or criminal anarchy law.) Even though not based on the First Amendment, the decision was the first time the Court had invalidated a conviction under a state or federal law directed at punishing the speech of a radical political figure.

The Fiske decison rested on the historic decision, Gitlow v. New York, on June 8, 1925, in which the Court had incorporated the free speech and free press clauses of the First Amendment into the due process clause of the Fourteenth Amendment, making them applicable to the states.

Interestingly, the Court accepted the incorporation doctrine, which was only two years old, as settled law, with virtually no comment or elaboration (and Justice Sanford in the Gitlow decision had asserted the incorporation doctrine in a single sentence without reference to any cases or history of the Fourteenth Amendment). In retrospect, it is astonishing how this idea, which became the foundation of the civil rights and civil liberties revolutions in the decades ahead, was established so quickly and with so little comment.

The Kansas Criminal Syndicalism law: “Section 1. ‘Criminal syndicalism’ is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit. . . .”

The Court: “The result is that the Syndicalism Act has been applied in this case to sustain the conviction of the defendant without any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution. Thus applied, the Act is an arbitrary and unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the defendant in violation of the due process clause of the Fourteenth Amendment.”

Learn more about the history of criminal anarchy, criminal syndicalism, sedition, and similar laws: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)

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